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TMI Blog2024 (10) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for the fact that the Show Cause Notice was not received by the appellant. Also no proof of service is placed on record by the Department. Similarly, there is no proof of service of Order-in-Original upon the appellant. In the present case, the date of receipt is 6th April, 2022. The appeal before Commissioner (Appeals) should have been filed on or before 5th June, 2022. Though the said section 85 of Finance Act has a proviso that the appeal can be presented within a further period of one month, however, the appellant has to satisfy the Commissioner (Appeals) that it was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months. No doubt the appellant has filed the appeal before Commissioner (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred by limitation except that the reason for the purpose is modified. Irrespective of it to be an appeal filed within a period of three months, the delay beyond 60 days from the date of receipt of Order-in-Original dated 06.04.2019 is not been reasonably and sufficiently explained. Appeal dismissed. - DR. RACHNA GUPTA, MEMBER ( JUDICIAL ) Present for the Appellant : Mr. Suhrid Bhatnagar, Advocate Present for the Respondent: Mr. Rohit Issar, Authorised Representative ORDER Present appeal has been filed to assail the Order-in-Appeal (O-I-A) No.62/2023 dated 01.03.2023 vide which the appeal has been rejected as being barred by time. 2. The appellant herein is alleged to have not paid the service tax amounting to Rs.11,27,649/- for the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is on 18th February, 2022, when the appellant received a letter for recovery of amount of Rs.11,27,649/-, that appellant acquired knowledge about Order-in-O dated 11.09.2019. Ld. Counsel mentioned that this letter was delivered to appellant by hand through someone in appellants vicinity. Subsequent to receiving the said letter appellant filed an application under Right to Information Act on 31st March, 2022. In response thereto, the copy of Order-in-Original was received by the appellant on 6th April, 2022. After receiving the said copy, the appeal before Commissioner (Appeals) was filed on 5th July, 2022. Ld. Counsel has impressed upon that though the appeal could not have been filed within 60 days but was filed within another one month w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to which the matter be allowed to be heard on merits by way of remand. Appeal is, accordingly, prayed to be dismissed. 7. Having heard both the parties, it is found apparent on record that there is no proof of service of Order-in-Original dated 11th September, 2019 to ever have been served upon the appellant. The Show Cause Notice was also not received by the appellant as submitted. His absence before Original Adjudicating Authority, to my opinion, is the sufficient corroboration for the fact that the Show Cause Notice was not received by the appellant. Also no proof of service is placed on record by the Department. Similarly, there is no proof of service of Order-in-Original upon the appellant. 8. However, the subsequent apparent fact is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt may not be burdened on account of his fault. However, in the light of the facts of the present case where the appellant could not appear before the original adjudicating authority for want of receiving any processes ever served upon him except that he received recovery notice for an amount of Rs.11,27,649/-, that too, much beyond the date when this demand was confirmed. Such circumstances warrant utmost diligence on part of the appellant to expedite the filing of the appeal against the order confirming such demand. No single effort has been brought to notice by ld. Counsel about such diligence ever exercised by the appellant. Irrespective the appellant is an uneducated person but ignorance of law is not a defence available to any litigan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole of the period of delay. 10. The Hon ble Apex Court in the case of Singh Enterprises vs. CCE, Jamshedpur reported in 2008 (221) ELT 163 SC held as follows:- 8 . The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the Limitation Act ) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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